Citation Nr: 0930723
Decision Date: 08/17/09 Archive Date: 08/27/09
DOCKET NO. 08-18 206 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUE
Entitlement to recognition as the Veteran's surviving spouse
for purposes of receiving Department of Veterans Affairs (VA)
death pension benefits.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
J. Connolly, Counsel
INTRODUCTION
The Veteran served on active duty from April 1945 to March
1946. The Veteran died in June 1978. The appellant seeks
entitlement to VA benefits as his surviving spouse.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a February 2006 determination by the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Louis, Missouri.
Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A.
§ 7107(a)(2) (West 2002 & Supp. 2008).
FINDINGS OF FACT
1. The appellant and the Veteran were married in July 1941.
2. The Veteran died June 1978.
3. The appellant remarried in 1980 and this marriage was
subsequently terminated by divorce in December 1988.
4. The appellant's claim is for VA death pension benefits.
CONCLUSION OF LAW
The criteria for entitlement to recognition as the surviving
spouse of the Veteran for the purpose of VA death benefits
have not been met. 38 U.S.C.A. §§ 101(3), 103 (West 2002 &
Supp. 2008); 38 C.F.R. §§ 3.1(j), 3.50, 3.53, 3.55 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Veterans Claims Assistance Act of 2000 (VCAA)
There has been a significant change in the law with the
enactment of the Veterans Claims Assistance Act of 2000
(VCAA). There are some claims to which VCAA does not apply.
Livesay v. Principi, 15 Vet. App. 165, 178 (2001). It has
been held not to apply to claims based on allegations that VA
decisions were clearly and unmistakably erroneous. Id. It
has been held not to apply to claims that turned on statutory
interpretation. Smith v. Gober, 14 Vet. App. 227, 231-2
(2000). The United States Court of Appeals for Veterans
Claims (Court) has held that the provisions pertaining to
VA's duty to notify and to assist do not apply to a claim if
resolution of the claim is based on interpretation of the
law, rather than consideration of the factual evidence. See
Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). The
Court has also held that compliance with the VCAA is not
required if additional evidence could not possibly change the
outcome of the case. See Valiao v. Principi, 17 Vet. App.
229, 232 (2003).
In another class of cases, remand of claims pursuant to VCAA
is not required because evidentiary development has been
completed. Wensch v. Principi, 15 Vet. App. 362, 368 (2001);
Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Although the
United States Court of Appeals for Veterans Claims (Court)
said in Wensch that VCAA did not apply in such cases, it may
be more accurate to say that VCAA applied, but that its
notice and duty to assist requirements had been satisfied.
When it is clear that there is no additional evidentiary
development to be accomplished, there is no point in
remanding the case. See Soyini v. Derwinski, 1 Vet. App.
540, 546 (1991) (strict adherence to requirements in the law
does not dictate an unquestioning, blind adherence in the
face of overwhelming evidence in support of the result in a
particular case; such adherence would result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the claimant).
During the drafting of the VCAA, Congress observed that it is
important to balance the duty to assist against the futility
of requiring VA to develop claims where there is no
reasonable possibility that the assistance would substantiate
the claim. The Board first notes that this issue turns on
statutory interpretation. See Smith. Thus, because the law
as mandated by statute, and not the evidence, is dispositive
of this appeal, the VCAA is not applicable. Mason v.
Principi, 16 Vet. App. 129 (2002); see also Sabonis v. Brown,
6 Vet. App. 426, 429- 30 (1994) (where application of the law
to the facts is dispositive, the appeal must be terminated
because there is no entitlement under the law to the benefit
sought.). As such, no further action is required pursuant to
the VCAA.
Recognition as the Surviving Spouse for Purposes of Receiving
VA Death Benefits
The appellant applied for death pension benefits, asserting
that she is the Veteran's surviving spouse. She maintains
that although she remarried another man after the Veteran
died, they are divorced. In addition, she asserts that she
is receiving benefits from the Social Security Administration
(SSA) as the widow of the Veteran.
A surviving spouse is defined as a person (a) of the opposite
sex; (b) who was the spouse of the veteran at the time of the
veteran's death; (c) who lived with the veteran continuously
from the date of marriage to the date of the veteran's death
(with exceptions not applicable here); and (d) who has not
remarried (or engaged in conduct not applicable here). 38
U.S.C.A. § 101(3); see also 38 C.F.R. § 3.50(b).
The record shows that the appellant meets the law and
regulation cited above. The record also contains no evidence
indicating that she did not live continuously with the
Veteran from the date of their marriage until his death.
Thus, immediately following the Veteran's death, the
appellant was the Veteran's surviving spouse.
However, the appellant remarried in 1980. That marriage was
terminated by divorce in December 1988. The Board notes that
a surviving spouse is defined by law as a person who has not
remarried. 38 U.S.C.A. § 101(3) ("surviving spouse means . .
. a person . . . who has not remarried"); 38 C.F.R. §
3.50(b)(2) ("a surviving spouse means a person . . . who . .
., except as provided in § 3.55, has not remarried").
Although remarriage is generally a bar to eligibility for
status as a surviving spouse, there are ten exceptions to
that general rule. 38 C.F.R. §§ 3.55(a)(1) to (a)(10); see
also 38 U.S.C.A. §§ 103(d), 1311(e).
With respect to the facts of this case, the following three
exceptions are inapplicable in this case as the rules apply
to common law marriages: 38 C.F.R. §§ 3.55(a)(5), (a)(6),
(a)(8). In addition, the following three exceptions are
inapplicable in this case, because the appellant filed a
claim for death pension benefits and those exceptions relate
to medical care benefits to survivors and dependants under 38
U.S.C. § 1781, educational assistance under 38 U.S.C chapter
35, and housing loans under 38 U.S.C. chapter 37: 38 C.F.R.
§§ 3.55(a)(4), (a)(7), (a)(9). Regarding the other four
exceptions, the facts in this record will be applied to each
of those exceptions.
Remarriage of a surviving spouse, regardless of when it
occurred, shall not bar the furnishing of benefits to such
surviving spouse if the marriage was void or has been
annulled. 38 U.S.C.A. § 103(d)(1); 38 C.F.R. § 3.55(a)(1).
The claims file does not contain any evidence that the
marriage was void or had been annulled. Therefore, that
exception is inapplicable in this case.
If an individual, who but for the remarriage would be
considered the surviving spouse, remarries on or after
January 1, 1971, and the marriage was dissolved by a court
with authority prior to November 1, 1990, or terminated by
legal proceedings commenced prior to November 1, 1990,
benefits will not be barred, provided that the divorce was
not secured through fraud or collusion. 38 C.F.R. §
3.55(a)(2).
In this case, the appellant remarried on a date after January
1, 1971 (in 1980) and the marriage was dissolved by a court
with authority prior to November 1, 1990. The record
contains the Decree of Dissolution of Marriage which was
dated in December 1988. There is no record of any subsequent
marriage. While this exception would appear to apply on its
face, the governing law states that this exception applies
only to Section 1311, Section 1781, Chapter 35 benefits, and
Chapter 37 benefits. It does not apply to death pension
cases. See 38 U.S.C.A. § 103 (a) (3) and (5).
The record also does not establish the next exception that
applies explicitly to dependency and indemnity compensation
(DIC) benefits. The remarriage of a surviving spouse on or
after October 1, 1998, terminated by divorce will not bar the
furnishing of DIC benefits (unless the divorce or annulment
was secured through fraud or collusion). 38 C.F.R. § 3.55(
a)( 3). The claim is for death pension, not DIC. Further,
for marriages entered on or after January 1, 2004, the
remarriage of a surviving spouse after the age of 57 shall
not bar the furnishing of DIC (and other) benefits. 38
C.F.R. § 3.55(a)(10). The appellant is seeking death
pension, not the benefits under this provision and the
remarriage took place on a date before January 1, 2004.
Accordingly, the appellant does not meet the requirements of
that exception.
In sum, unless the appellant's remarriage was void or has
been annulled, entitlement to death pension benefits cannot
be granted under governing VA law.
Although the appellant may be receiving SSA benefits based on
her marriage to the Veteran, she does not meet the criteria
for VA death pension benefits for the reasons cited above.
When there is an approximate balance of positive and negative
evidence about a claim, reasonable doubt should be resolved
in the claimant's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. §
3.102. However, this appeal involves the application of law
to undisputed facts in the record; thus, there is no
reasonable doubt to resolve. See Sabonis (when there is no
authority in the law to provide relief, that relief is
properly denied). Accordingly, the Board finds that the
appellant is not entitled to the status of a surviving spouse
for purposes of receiving VA death benefits.
ORDER
Entitlement to recognition as the Veteran's surviving spouse
for purposes of receiving VA death benefits is denied.
____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs